Most Commonly Tested Criminal Law Issues

Criminal law fact patterns are built backward from a small set of doctrinal fault lines. A body appears, so you grade the homicide. Two or more people are involved, so you run conspiracy and accomplice liability. Somebody tries and fails, so you run attempt. Somebody was drunk, provoked, threatened, or mistaken, so you run defenses and mens rea negation. Almost every essay is some permutation of these.

The reliable frequency ranking, based on how these courses are structured: homicide grading first, mens rea second, attempt and conspiracy third, accomplice liability fourth, then defenses, then theft offenses and rape. Constitutional limits on the criminal law (legality, Robinson v. California, 370 U.S. 660 (1962), burden-of-proof rules) show up more often as short-answer or policy questions than as the spine of an essay.

The variation across schools is real and predictable. Professors who teach from Kadish or Dressler tend to load the exam with homicide and complicity. Professors who use the MPC heavily will make you run parallel common law and MPC analyses on the same facts. Professors who spend three weeks on rape law or on theft offenses are telling you those will be tested. Check your syllabus's page allocation — the issue that got the most class hours gets the most points.

Never ask "is this murder?" Ask, in order: is there a killing with the required actus reus and causation, then which grade of homicide, then which defenses reduce or eliminate liability. Grade every plausible level, even the ones you reject.

For first-degree murder, the fight is premeditation and deliberation. Use the People v. Anderson, 70 Cal. 2d 15 (1968) categories — planning activity, motive, and manner of killing — and argue both sides on whether a quick decision can be premeditated. For second-degree, cover intent to kill, intent to inflict grievous bodily harm, and depraved heart (extreme recklessness plus indifference to human life). Commonwealth v. Welansky, 316 Mass. 383 (1944) is the standard vehicle for the recklessness/negligence line.

Felony murder is the single most heavily tested subtopic in the course because it has four separate limiting doctrines, each of which is a hidden issue: (1) inherently dangerous felony, assessed in the abstract or as committed depending on jurisdiction; (2) merger, from People v. Ireland, 70 Cal. 2d 522 (1969) — an assault that is an integral part of the homicide cannot be the predicate; (3) the res gestae / temporal-and-causal-nexus requirement; and (4) the killing-by-a-non-felon problem, where agency jurisdictions like State v. Canola, 73 N.J. 206 (1977) and People v. Washington, 62 Cal. 2d 777 (1965) reject liability but proximate-cause jurisdictions impose it. Cite People v. Stamp, 2 Cal. App. 3d 203 (1969) for the proposition that the felon takes the victim as he finds him.

For voluntary manslaughter, run adequate provocation, actual heat of passion, no reasonable cooling time, and causal connection. Girouard v. State, 321 Md. 532 (1991) holds words alone are insufficient at common law; Maher v. People, 10 Mich. 212 (1862) is the flexible reasonable-person approach. Then run the MPC alternative — extreme mental or emotional disturbance with a reasonable explanation, judged from the actor's situation as he believed them to be, MPC § 210.3(1)(b) — because it produces a different result on the same facts. That contrast is where points live.

The most common mens rea trap is a statute that puts the mental state word at the front and then lists three or four elements. Under MPC § 2.02(4), the stated culpability applies to every material element unless a contrary purpose plainly appears; under the common law, courts often read it to cover only the first. Say which approach you are using and run the elements one at a time — conduct, attendant circumstances, result.

The second trap is strict liability. Morissette v. United States, 342 U.S. 246 (1952) and Staples v. United States, 511 U.S. 600 (1994) establish the presumption in favor of a mens rea requirement, with public welfare offenses (regulatory, light penalty, no stigma) as the exception. Whenever a statute is silent, argue the presumption first.

The third trap is mistake. Mistake of fact negates liability only if it negates the required mental state; an unreasonable mistake still defeats a purpose or knowledge element but not a negligence element. Mistake of law is generally no defense except where the statute makes knowledge of illegality an element (Cheek v. United States, 498 U.S. 192 (1991)), where an official interpretation was reasonably relied upon, or in the narrow no-notice situation of Lambert v. California, 355 U.S. 225 (1957).

On actus reus, the graded issues are omissions and voluntariness. For omissions, identify a legal duty from statute, status relationship, contract, voluntary assumption of care that secludes the helpless victim, or creation of the peril — Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962) and People v. Beardsley, 150 Mich. 206 (1907). For voluntariness, the exam hook is usually a seizure, sleepwalking, or a status-versus-conduct question under Robinson and Powell v. Texas, 392 U.S. 514 (1968). Also watch for causation: intervening acts, the year-and-a-day rule where retained, and the difference between but-for and proximate cause.

Attempt is tested through two moving parts: the mens rea (specific intent to commit the target offense, which is why attempted felony murder and attempted depraved-heart murder are usually impossible) and the actus reus test. Compare the common law proximity approach in People v. Rizzo, 246 N.Y. 334 (1927) with the MPC § 5.01(1)(c) substantial-step test plus its corroboration requirement. Then hit impossibility: factual impossibility is no defense, legal impossibility traditionally is, and the MPC largely abolishes the distinction by asking what the defendant believed the circumstances to be.

Conspiracy is tested for the agreement element, the overt act requirement (not required at common law, required by many statutes), the scope of the conspiracy (single versus multiple, hub-and-spoke versus chain), and Pinkerton v. United States, 328 U.S. 640 (1946) liability for foreseeable crimes committed in furtherance. Note that the MPC rejects Pinkerton and uses a unilateral approach to agreement, which changes the outcome when one "conspirator" is an undercover officer. Wharton's rule (Iannelli v. United States, 420 U.S. 770 (1975)) and the legislative-exemption rule (Gebardi v. United States, 287 U.S. 112 (1932)) are classic hidden issues.

For accomplice liability, state the rule as aid or encouragement plus intent to aid and the mental state required for the underlying offense. Mere presence is insufficient. Then check for the natural-and-probable-consequences doctrine, which the MPC rejects, and for withdrawal — which requires timely communication and, if the accomplice supplied aid, neutralizing it or notifying authorities.

Self-defense is the most frequently tested defense. Break it into honest belief, reasonableness (People v. Goetz, 68 N.Y.2d 96 (1986), reasonableness assessed objectively but with the defendant's relevant circumstances and knowledge), imminence, proportionality, the initial-aggressor limitation, and retreat rules — no duty to retreat in the majority of states, duty to retreat before deadly force in a minority, castle exception everywhere. Imperfect self-defense reduces murder to manslaughter in many jurisdictions and is worth a paragraph whenever the belief is honest but unreasonable. State v. Norman, 324 N.C. 253 (1989) is the battered-spouse imminence case.

Insanity requires you to name the test your jurisdiction uses: M'Naghten's Case, 8 Eng. Rep. 718 (1843) (defect of reason so that the defendant did not know the nature and quality of the act or did not know it was wrong), irresistible impulse, the MPC § 4.01 substantial-capacity test, or the federal standard in 18 U.S.C. § 17, which drops the volitional prong and puts the burden on the defendant by clear and convincing evidence. Kahler v. Kansas (2020) holds due process does not require the moral-incapacity prong. Distinguish insanity from diminished capacity, which negates an element rather than excusing.

Duress excuses most crimes when there is a threat of imminent death or serious bodily injury to the defendant or another and no reasonable escape, but at common law it is not a defense to intentional murder. Necessity requires a choice of the lesser evil, no adequate legal alternative, and no fault in creating the situation — Regina v. Dudley & Stephens (1884) 14 Q.B.D. 273 is the limit case. Voluntary intoxication is relevant only to specific-intent crimes at common law and only to purpose and knowledge under the MPC.

Finally, know the burden rules. In re Winship, 397 U.S. 358 (1970) requires proof beyond a reasonable doubt of every element; Sandstrom v. Montana, 442 U.S. 510 (1979) bars mandatory presumptions on mens rea; Patterson v. New York, 432 U.S. 197 (1977) permits the state to place the burden of an affirmative defense on the defendant, with Mullaney v. Wilbur, 421 U.S. 684 (1975) as the counterweight when the "defense" is really an element in disguise.

Theft offenses are tested less than students expect but are heavily tested when a professor spends time on them, because the distinctions are mechanical and easy to grade. Larceny is a trespassory taking and carrying away of the personal property of another with intent to permanently deprive, formed at the time of taking (watch for continuing trespass). Embezzlement is fraudulent conversion by someone already in lawful possession. False pretenses transfers title, not just possession; larceny by trick transfers possession only. Robbery is larceny plus force or threat of imminent force, from the person or presence. Burglary at common law is breaking and entering the dwelling of another at night with intent to commit a felony therein — most jurisdictions have dropped the nighttime and dwelling limits by statute.

Rape is tested where the course covers it, and the exam usually turns on the force requirement versus a nonconsent-only standard, the treatment of resistance, mistake as to consent (reasonableness and whether the jurisdiction allows the defense at all), and statutory rape as a strict liability offense where a reasonable mistake of age is typically no defense. Because state law varies enormously here, say which model you are applying and argue the alternative.

Organize by defendant, then by victim or transaction, then by crime, then by element. Do not organize chronologically — you will duplicate analysis and miss issues. Under each crime, state the elements, dispose of the easy ones in a clause, and spend your words on the contested one.

Two habits separate top answers. First, when the common law and the MPC diverge, run both explicitly and say why the outcome changes; that single move is often the difference between a B and an A on homicide, attempt, and conspiracy questions. Second, argue the loser. If provocation probably fails, write the best sentence for the defendant and then explain why the prosecution wins. Professors allocate points for the counterargument, not for the conclusion.

Finally, look at your professor's old exams before you build an attack outline. Criminal law professors are unusually consistent from year to year in which doctrines they hide and which ones they foreground.